Provisional Patent Application

Since 1995, the USPTO has offered inventors the option of filing a provisional application for patent, designed to provide a lower cost first patent filing in the United States and to give U.S. applicants parity with foreign applicants. (Since most foreign countries follow a first-to-file invention convention, instead of the first-to-invent convention used in the U.S., the provisional application allows an early filing date to be created before all the details are written in the final patent application.)

A provisional patent application must meet the statutory requirements for a patent, but need not contain claims. The provisional application must be followed by a regular patent application on the disclosed material within the next year. The provisional application may be used to create an early filing date if a patent has a bar date due to a prior disclosure. It also may move the entire patent period into the future by as much as a year. This is an advantage when it is expected that the technology will have a stronger royalty stream later in its patent life, as is the case with many pharmaceuticals.

Provisional patents have a downside, as well. Many foreign patent offices will not recognize that a U.S. provisional patent has established a prior filing date if the provisional does not meet all their criteria. It also is unclear how much detail should be included in a provisional application.